What is the exclusionary rule?

Rule prevents introduction at a subsequent criminal trial of evidence unlawfully seized. 

No constitutional mandate.

When is a person considered "seized" by the police?

when the officer, by means of physical force or show of authority, terminates or restrains freedom of movement; there is no seizure without actual submission.

What is the test for determining whether someone has been "seized?"

Whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.

Locations searched

Is there a reasonable expectation of privacy in:

Home = yes

Open fields = No

Overnight guest in a home = yes

Motel Room = yes

Business premises = yes (not for administrative searches)

Prison = No

What level of suspicion must an officer have to search an automobile?

Articulable, reasonable suspicion of a violation of the law

Which of these objects sought are protected by the Fourth Amendment?

Papers and effects not given to a 3rd party = YES

Financial statements from a bank = NO

Automobiles = kind of, lesser expectation of privacy than home

Abandoned property = No

Do the following methods constitute a search under the Fourth Amendment?

1. Fly-over = No

2. Technological Device = depends...

- car = no

- person's body = yes

- sense-enhancing technology not used by general public = yes

3. Canine Sniff =Yes (if it involves a physical intrusion onto constitutionally protected property)

4. Field test of substance = No

What are the requirements for a valid search warrant?

1. Issued by a neutral and detached magistrate
2. based on probable cause
3. supported by oath or affidavit
4. describe the places to be searched; and
5. items to be seized

What does the knock and announce rule do?

Gives individuals the opportunity to comply with the law;

avoid destruction of property from forcible entry;

answer the door with dignity

This rule does NOT trigger the exclusionary rule

What is the Chimel standard?

A lawful arrest creates a situation that justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area (wingspan) where a weapon can be concealed.

If arrest is in a home, closets and other spaces immediately adjoining the place of arrest from where an attack could be launched can be searched too.

What does the Fourth Amendment require law enforcement demonstrate for a warrantless search of a vehicle?

(i) arrestee within reaching distance of passenger compartment, may be able to threaten officer safety or destroy evidence; or

(ii) that is it reasonable that evidence of the offense of arrest might be found in the vehicle

What are exigent circumstances?

Hot Pursuit

Emergency Situations

What are the exceptions to the warrant requirement?

SPAACES

1. Search incident to a lawful arrest
2. Exigent circumstances
3. Stop and Frisk
4. Automobile Exception
5. Plain-view Doctrine
6. Consent Searches
7. Administrative Searches

What justifies a Terry Stop?

A stop is justified on the reasonable suspicion, based on articulable facts, that detainees are or were involved in criminal activity. 

To determine reasonable suspicion, courts look to the totality of the circumstances.

More than a vague suspicion but less than probable cause.

During a Terry automobile stop, when can an officer search the passenger compartment for weapons?

i. reasonable belief suspect is dangerous and may have immediate control of weapons

ii. search is limited to those areas in which a weapon is hidden or placed.

Can the police rely on third party consent of property jointly controlled by the third party and the defendant if the defendant is present?

NO

When does the fruit of the poisonous tree doctrine apply?

To secondary "derivative evidence" discovered as a result of the primary taint.

What are the exceptions to the fruit of the poisonous tree?

Knock and announce
In-Court Identification
Attenuation Principle
Good-Faith Exception
Inevitable discovery
Independent Source Doctrine
Isolated Police negligence

Fifth Amendment Rights and Privileges against compulsory self-incrimination

No person shall be compelled in any criminal case to be a witness against himself

Applies to the states through the Fourteenth Amendment

How does the 5th Amendment apply to police interrogation?

Miranda v. Arizona

SCOTUS held suspect has a right not to be compelled to make incriminating statements in the police interrogation process.

Any incriminating statement obtained as a result of custodial interrogation may not be used against the suspect at trial unless procedural safeguards are provided. 

When is an interrogation custodial?

When a substantial seizure is either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest.

Test: Whether a reasonable person would believe that he is not free to leave

Is the right to counsel under the 5th Amendment automatic?

No, to invoke counsel under the 5th, the D must make a specific, unambiguous statement asserting his desire to have counsel present. 

How many days later, may police re-open interrogation of a suspect who has asserted his 5th Amendment right to counsel?

14, but D receives fresh Miranda

Is physical evidence obtained as a result of a non-Mirandized confession, admissible?

yes, so long as the confession was not coerced.

Regarding the 5th Amendment in the trial court:

What is transactional immunity?

"Blanket" or "total" immunity, fully protects a witness from future prosecution for crimes related to her testimony

Regarding the 5th Amendment in the trial court:

What is derivative-use immunity?

Only precludes the prosecution from using the witness's own testimony, or any evidence derived from the testimony, against the witness.

Regarding the 5th Amendment in the trial court:

What is Federal & State immunity?

Testimony under a grant of immunity may not be used by another U.S. jurisdiction to prosecute the defendant.

*State grant of immunity will preclude admission of the testimony in federal proceeding.

What does the Sixth Amendment provide for?

Accused has the right to:

1. Public trial
2. Confront Witnesses against him
3. Cross-examine witnesses
4. Be Present at his own trial
5. "the assistance of counsel for his defense"

What types of proceedings does the 6th amendment right to counsel apply?

Cases where the D is sentenced to incarceration

When does the 6th amendment right to counsel apply?

All critical stages of prosecution, after formal proceedings have begun

The right automatically attaches when the State initiates prosecution with an indictment or formal charge and ends at the sentencing stage of the trial.

For purposes of the 6th Amendment, what are the critical stages or trial?

i. post-indictment lineups and in-person identifications

ii. post-indictment interrogations, whether custodial or otherwise

iii. Arraignment and preliminary hearing to

determine probable cause to prosecute;

iv. Plea bargaining, guilty pleas, and sentencing; and

v. Appeals as a matter of right 

What are non-critical stages for the 6th amendment right to counsel?

i. witness viewing photos of an alleged D;

ii. Pre-charge investigative lineups

iii. Taking of fingerprints, handwriting, voice, or blood;

iv. Hearings to determine probable cause to detain the D (Gerstein Hearing)

v. Discretionary appeals; and

vi. post-conviction proceedings, such as parole or probation hearings (including habeas corpus)

What is the Blockburger Test?

If a right to counsel at a trial proceeding under the 6th amendment is denied, what should happen to D's conviction?

Automatic reversal, even without a showing of unfairness

If a defendant has pleaded guilty at a preliminary hearing, without being given the opportunity to have counsel, what should happen to D's plea?

D has the right to withdraw the plea, and it cannot be used against them as an evidentiary admission.

Is there a 6th amendment violation, if the police place an informant in D's cell simply to listen and report the D's statements, without questioning the D?

NO

If the police initiate a conversation with an accused individual who has requested counsel, can incriminating statements made by the D be used to impeach?

Yes

What is required to reverse a conviction on the grounds of ineffective counsel?

i. representation fell below an objective standard of reasonableness

ii. counsel's deficient performance prejudiced the D, resulting in an unreliable or fundamentally unfair outcome.

What are the two types of identification procedures?

Corporeal: "in-person" lineups

Non-corporeal: photo arrays for a witness to ID suspect

Does the 6th Amendment right to counsel apply to any pre-indictment eyewitness identifications?

NO

What must the defendant prove the pre- or post-indictment lineup is inadmissible?

i. the identification was impermissibly suggestive

ii. substantial liklihood of misidentificaiton

What is a Gerstein Hearing?

Preliminary hearing to determine whether probable cause exists to hold the D (unless this has already been determined through a grand jury indictment or judicial issuance of a warrant)

Does not need to be adversarial

No right to counsel

48 hours after arrest

Does the double jeopardy clause attach during a grand jury proceeding?

No, does not attach until trial begins.

What does a jury of less than six members violate?

Due Process 

When is a unanimous verdict required?

Jury of six members

Under Federal Rule of Criminal Procedure 23(b), how many members are required for jury?

12, unless waived in writing and approved by the court.

11 juror is ok, if the 12th was excused for good cause after deliberations begin.

What is the prima facie case for absence of a representative cross-section?

i. the group allegedly excluded is a "distinctive" group in the community; 

ii. The Group was not fairly represented in the venire from which the jury was chosen

iii. The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process.

What is SCOTUS three-prong test to determine whether a peremptory challenge has been exercised on the basis of race in violation of the Equal Protection Clause of the 14th Amendment?

i. prima facie case for discrimination

ii. race-neutral explanation

iii. proving that the other party's proffered reason was pretextual

What is the Burton Rule, as it pertains to confessions of a non-testifying co-defendant at a joint trial?

Admission of a confession by a non-testifying co-defendant at a joint trial against the D violates the 6th Amendment, even when it merely corroborates the D's own confession.

When does the Burton Rule not apply?

Rule does not apply if:

1. The co-defendant testifies, or
2. A bench trial, or
3. Statements of an accomplice who is not tried as a co-defendant or
4. Co-defendant who takes the stand and denies making the statement

Regarding Presumptions of facts:

Is a presumption that the trier of fact is not compelled to accept and that does not shift the burden of proof permissive or mandatory?

Permissive

Regarding Presumptions of facts:

Is a presumption that the trier of fact is compelled to accept or that shifts the burden of proof permissive or mandatory?

Mandatory

Regarding Presumptions of facts:

Is a jury instruction that a person intends the ordinary consequences of his voluntary acts permissive or mandatory when the crime -- deliberate homicide -- required proof of intent??

Mandatory

Regarding Presumptions of facts:

Is upholding the statutory presumption that the occupants of a car in which firearms are found are in possession of the firearms,  permissive or mandatory?

Permissive

Is a judge's imposition of consecutive sentences based on facts that were not found by the jury, but rather by the judge a violation of the 6th Amendment?

No

In felony murder cases, can the death penalty be imposed on the D, if they were acting as an accomplice, did not kill, attempt to kill, or intend to kill?

No, unless the D significantly participated in the commission of the felony and acted with reckless indifference to human life.

What does the Fifth Amendment Double Jeopardy Clause protect against?

i. Second prosecution for the same offense after acquittal

ii. Second prosecution for the same offense after conviction

iii. Multiple punishments for the same offense.

What test is used to determine whether crimes constitute the same offense for double jeopardy?

Blockburger Test: each crime must require the proof of an element that the other does not in order for each to be considered a separate offense.

When does jeopardy attach in a jury trial? in a bench trial?

Jury: when the jury is empaneled and sworn in

Bench: when first witness is sworn in

What is the purpose of derivative-use immunity?

4th Amendment: Application to Arrest, Search and Seizure

What is the exclusionary rule?

4th Amendment: Application to Arrest, Search and Seizure

What does the exclusionary rule NOT apply to?

Federal habeas corpus review,

grand jury proceedings,

preliminary/bail/sentencing hearings,

proceedings to revoke parole,

evidence used as impeachment evidence against the defendant, or

civil proceedings.

4th Amendment: Application to Arrest, Search and Seizure: Arrest: Warrant

What facts support probable cause?

Officer's personal observations

Information from reliable, known, informant or verified unknown informant

Evidence seized during stop and based on reasonable suspicion 

4th Amendment: Application to Arrest, Search and Seizure: Arrest: Warrant

What is the knock announce rule?

Police generally must announce purpose when executing a warrant (unless state allows exception for exigent circumstances)

Violation does not trigger exclusionary rule

Exceptions to search warrant requirement:

What are the exceptions in a search incident to lawful arrest?

Wingspan

Home

Vehicle: Justified if:

- arrestee is within reaching distance of passenger compartment (weapons/evidence) during search, or

- It is reasonable that evidence of the offense of arrest might be in vehicle.

Exceptions to search warrant requirement:

What is a stop and frisk?

Stop: reasonable suspicion based on articulable facts that detainees involved in a crime, and is limited/temporary intrusion on D's freedom of movement.

Frisk: Without probable cause, may pat down a person's outer clothing if the officer has reasonable suspicion that the suspect was/is involved in criminal activity.

Exceptions to search warrant requirement: Stop and Frisk

When can police search the passenger compartment?

Exceptions to search warrant requirement:

What is the automobile exception?

Can search any part of car (compartments, containers (including luggage), trunk, etc.)

If probable cause that it contains contraband/evidence of crime.

Fifth Amendment Rights and Privileges: The 5th Amendment in a police interrogation context: Compliance

When must Miranda warnings be given?

Before interrogation begins (or given again if stopped for a long time), need not be verbatim, but must inform D of right to remain silent, any statement can be used in court, right to an attorney (or one will be appointed). 

Fifth Amendment Rights and Privileges: The 5th Amendment in a police interrogation context: Compliance

When does the D get their right to counsel?

Unambiguous statement asserting his desire to have counsel present, and once invoked, all interrogation must stop until counsel is present, unless D voluntarily initiates communication with police (including spontaneous statements) or 14 day break in custody and fresh Miranda warnings given.

Fifth Amendment in the Trial Context: 

Can D refuse to testify at a criminal trial or other proceeding?

Fifth Amendment in the Trial Context: 

When can a witness invoke the 5th amendment privilege?

Sixth Amendment: 

What does the right to counsel, under the 6th apply?

Any case in which actual suspended incarceration is imposed

Automatically applies at all critical stages of prosecution after formal proceedings begin, and right automatically attaches when the State initiates prosecution with indictment/formal charge, and ends at sentencing stage.

Sixth Amendment: 

Do police have to tell a D that counsel has been trying to get in contact with him?

Sixth Amendment: Offense Specific

What is the blockburger test?

2 different crimes in one criminal transaction deemed to be same offense unless each offense requires proof of an element that the other does not.

Unlike Miranda, presence of counsel only applies to interrogations about offense charges

LIKE Miranda, D may make knowing/voluntary waiver of right

Sixth Amendment: 

What are the remedies for denial of counsel?

Effect on conviction: automatic reversal, even without specific showing of unfairness

Effect on guilty plea: D has right to withdraw it, and it cant be used against him as an admission

Nontrial proceeding: harmless error analysis

D's statements to informants: post-indictment statement to informant where situation is likely to induce D to incriminate himself without counsel is inadmissible

Exclusionary Rule: 

- Fruit of poisonous tree: statements and physical evidence obtained as a result of violation; such evidence will be inadmissible

- Impeachment: incriminating evidence obtained in violation of 6th amendment may be used for impeachment.

Pre-Trial Procedures:

What are the eyewitness ID procedures?

Corporeal: in person (e.g., lineups)

Non-corporeal: not in person (e.g., photo arrays)

Sixth Amendment right to counsel at in-person post-indictment lineup, but not at non-corporeal

Inadmissible if violated but witness can ID the D at trial if ID has independent reliability

Pre-Trial Procedures: 6th Amendment right to counsel at lineups

What is the two prong test for impermissibly suggestive ID procedures? Due Process Rights

D must prove ID was impermissibly suggestive; and 

Substantial likelihood of misidentification

Prosecution may prove that it was nonetheless reliable (opportunity to view, degree of attention, accuracy of witness's description, level of certainty, length of time)

Pre-Trial Procedures: 6th Amendment right to counsel at lineups:  impermissibly suggestive ID procedures

What is the remedy for violation"?

Pre-Trial Procedures: Preliminary Proceedings:

If you have probable cause to detain

must be held within 48 hours of arrest to determine PC

4th Amendment guarantees D right to be released if no PC

No remedy if detention is unlawful (other than exclusion of evidence)

Pre-Trial Procedures:

What is does the State have a duty to disclose?

Affirmative duty to disclose any material evidence favorable to D and relevant to prosecution's case in chair that would negate guilt or diminish culpability/punishment

Failure is grounds for reversal if D shows:

- the evidence is favorable to the D; and

- the failure to disclose caused prejudice against the D

Trial: Jury Trial

Federal: 6th Amendment right to jury

State: under 14th, D has a right to jury trial in criminal cases for serious offenses

Length: right attaches for serious offenses (authorized sentence of more than six months imprisonment) regardless of actual penalty imposed

Trial: Jury Trial

Federal courts:12 members unless waived in writing and approved by court, but a verdict by 11 permitted if 12th juror excused for good cause AFTER deliberations begin

State courts: juries of fewer than 6 jurors are unconstitutional, juries of 6 must return unanimous verdicts, and in juries of more than 7 jurors, unanimity is not required.

Post-Trial Considerations:

What is Double Jeopardy? 

5th Amendment protection against the second prosecution for same offense after acquittal/conviction and against multiple punishments for the same offense.

Post-Trial Considerations: Double Jeopardy (5th Amendment)

How is the Blockburger test applied?

Applied if D's conduct can be prosecuted as two or more crimes so it generally bars successive prosecutions for greater/lesser included offenses unless jeopardy attaches to lesser-included offense before event necessary for greater